Newsdesk

I was just contacted by reporter Mary Beth Marklein from USA Todayabout a post on her new blog regarding issues in higher education. For those of you unfamiliar with her work, Mary Beth has written some excellent articles over the years highlighting speech codes and campus free speech controversies. Today she wanted to get my reaction to the recent news from Penn State, where photos of students attending a Halloween party dressed as victims of the Virginia Tech shootings have prompted outrage.

She writes:

Penn State has had to weather some less-than-positive news of late, what with the photos emerging on Facebook recently showing two students dressed as victims of the Virginia Tech shootings at a Halloween party.

Penn State officials condemned the students who pulled the Halloween stunt but did not take disciplinary action—punishment would violate their right to free speech.*

The asterisk refers readers to the question, “Wonder what FIRE…has to say about this. The group has problems with several Penn State campus policies.”

Well, in answer to the first part: If Penn State is very clear the students will not be punished, administrators, faculty or students are free to register its disgust or disagreement with the choice of costume. The all-important distinction between condemnation and punishment was precisely what was at issue in this week’s University of Florida case, where the administration publicly demanded an apology and left open the possibility of sanctions for a student group that showed a controversial documentary. As we announced yesterday, the university—under pressure from FIRE and the Attorney General of Florida—reaffirmed the students’ rights and confirmed that no one would be punished or investigated for what was clearly protected expression.

From a more practical standpoint, however, I think universities and the public should just stop scrutinizing Halloween costumes for offense. For one, I am hard-pressed to imagine a Halloween costume that would not be protected expression—other than, say, a costume so minimal it could count as indecent exposure. For another reason, the point of costumes like these is to shock and offend. Suggesting censorship as an answer to deliberately outrageous speech inevitably just promotes the expression in question to a larger audience, thereby making a tasteless joke a national issue. A general rule of free speech is that if you really don’t want to draw attention to someone’s message, don’t try to censor it.

As for the policies that FIRE has objected to, you can see them yourself on Penn State’s Spotlight page. I would say the most troubling aspect of Penn State’s code is its student oath, which requires students to pledge that they “will not engage in any behaviors that compromise or demean the dignity of individuals or groups, including intimidation, stalking, harassment, discrimination, taunting, ridiculing, insulting, or acts of violence.”

I think it would be very difficult to find students who have never taunted, ridiculed, or insulted anyone on campus. In fact, a cursory examination of college-age interaction might reveal this kind of behavior to be a regular occurrence, especially among close friends!

I am very pleased that Mary Beth will be keeping a regular eye on events, issues, and abuses on campus. As we always say, universities often cannot defend in public what they do in private. If more eyes are watching, the more likely administrators will choose to do the right thing.